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Monday, February 18, 2013

Is There Copyright in a Tweet?

Twitter needs no introduction. Each day, millions around the world post on
the microblogging website, a wide array of thoughts, facts, jokes, witticisms
or plain opinions which are called “Tweets” that appear on the main page of the
user. Twitter also provides users with a “retweet” option that allows you to
re-post another user’s tweets while attributing the tweet to its original
author.

With this
background, it may be pertinent to examine whether any IP vests in tweets, in
particular copyright. While there is no dispute that pictures and content that
are linked through a tweet are protected by copyright, this post is about the copyrightable
nature of the 140-character tweet itself. The Terms of Service on Twitter state “What’s yours is yours- you own your content”. This
does not by itself lead to vestation of copyright in one’s tweets merely
because Twitter states so. The copyrightability of a tweet is still subject to
the requirements of copyright law.

The first of
many questions to be answered is whether tweets are ‘substantial’ or ‘long’
enough to be worthy of copyright protection. Brevity might be the soul of wit
but for the purposes of copyright protection, slogans, titles and short phrases
are generally denied copyright protection. The rationale behind this is that
something as short is generally insubstantial and thus would lack the requisite
originality and creativity, also known as the de minimis rule.

In addition,
the likelihood of another person coming up with the same short phrase original
tweet is fairly high. However, it is pertinent to note that some phrases have
been protected under copyright law for passing the test of sufficient
originality. (Les hauts de Hurlevent as
a translated title of Wuthering Heights was granted protection by a French
Court for being sufficiently original). Applying
this logic to tweets, it is evident that all tweets will not pass muster.
However, exceptions perhaps could to be carved out through case-law in
instances where sufficient creativity and originality are found, as in the case
of haikus, which are short forms of
poetry that could be written in 140 characters or less.

Yet another
strong argument as to why tweets would not be copyrightable is the problem of Scenes a faire. If there are limited
ways of expressing an idea, copyright law does not serve to protect such
expressions. If several users are tweeting about a particular event, it is
highly likely that there would be substantial similarity between the tweets,
given their brevity. Thus, it is clear that yet another category of tweets
might be precluded from copyright protection.

An interesting
question that crops up is whether a compilation of one’s tweets can be
copyrighted as a whole. Copyright is usually given to compilations such as
phonebooks and catalogues. However, in this case, protection would be given to
the format of the compilation as a whole and not to individual tweets contained
therein and this in no way indicates their copyrightable nature.

Flowing from
the above discussion, even if you copy a tweet, it will, in all probability fall
within the fair use exception. While the tweets of a celebrity may possess
commercial value of some sort, the same is not true of most other tweets. A
tweet being a statement made on a public forum, in addition to the very nature
of the medium in which it is posted might not make the attraction of the fair
use defense very difficult.

To sum up, the
right question that must be posed is not whether tweets are copyrightable but
whether a particular tweet is
copyrightable, by virtue of meeting the requirements set forth in the law. A
lot would depend on how courts might read it, if such a question were to come
up. Ultimately, the determination rests on a careful examination of the facts
in each case. Perhaps questions of Intellectual Property in tweets are best
answered by looking into the law of trademark rather than the law of copyright.

Sneha Ma'am- Thank you for your questions. The debate on fair use would be of any relevance the tweet in question is protected by copyright at all. Assuming the particular tweet in question is copyrightable, as to your specific question of which provision of S.52 it would fall under, to the best of my knowledge, there is nothing in the 'fair dealing' provisions of the Indian Copyright Act that a tweet would fall under. In the Indian context, therefore, I think it would not fall within an exception. However, if one is to look at 'fair use', whether fair use provisions can be attracted or not heavily depends on the facts of each case. While determining the purpose and character of its use and the nature of the copyrighted work would be fairly straightforward, the problem is when the third factor is applied, which is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. In this sense, copying a tweet would amount to copying 140 out of the 140 characters and is tricky in that sense. One can only take guesses at how courts would interpret this.

As regards your second question, again, the application of trademark law would depend on the user of the twitter account and be limited to usernames and accounts and not to isolated tweets. Some form of trademark protection can be obtained by celebrities under Section 2 (1) (zb) of the Indian Trademarks Act by registering their names, nicknames and likeness as trademarks. This can protect a celebrity’s name and the commercial value associated with it. Impersonating another through a twitter account and posting tweets through an account bearing the name of celebrity will amount to TM infringement in such cases. If Indian courts have recognized trademarks in domain names as the Delhi high Court did in the DM Entertainment v. Jhaveri case, where it restrained the defendant from using the trademark ‘Daler Mehendi’, I feel courts will perhaps not hesitate in applying similar logic to twitter user accounts as well. Of course, I will have to concede to the limitations that trademark law poses in this regard. It may be possible to turn to TM law only in such cases where the twitter name itself is registered as a trademark. The solution to fight copying the contents of tweet then perhaps only lies within copyright law.